LeBrun: Frack ruling is far from the last word

FRED LEBRUN

Updated 9:06 pm, Saturday, May 4, 2013

Photo: Brennan Linsley

Image 1of/1

Caption

Close

Image 1 of 1

In this March 29, 2013 photo, a worker helps monitor water pumping pressure and temperature, at the site of a natural gas hydraulic fracturing and extraction operation run by Encana Oil & Gas (USA) Inc., outside Rifle, in western Colorado. Proponents of hydraulic fracturing point to the economic benefits from vast amounts of formerly inaccessible hydrocarbons the process can extract. Opponents point to potential environmental impacts, with some critics acknowledging that some fracking operations are far cleaner than others. (AP Photo/Brennan Linsley) less

In this March 29, 2013 photo, a worker helps monitor water pumping pressure and temperature, at the site of a natural gas hydraulic fracturing and extraction operation run by Encana Oil & Gas (USA) Inc., ... more

Photo: Brennan Linsley

LeBrun: Frack ruling is far from the last word

1 / 1

Back to Gallery

Opponents of hydrofracking in New York are elated, thanks to a pivotal appellate court ruling last week. So is the governor.

The mid-level court here in Albany's Third Judicial District ruled unanimously in favor of the right of local governments with zoning authority to ban hydrofracking within their borders, affirming a pair of lower court decisions related to bans issued by the towns of Dryden and Middlefield.

The gas extraction industry and landowner proponents of fracking had challenged the towns' right to ban fracking, arguing that only the state had the "supremacy" to do that. There are 55 local bans already in place, and now that two courts have ruled the same way, a flood of others is expected to follow.

This latest decision, called by Neil Woodworth, executive director of the Adirondack Mountain Club, "a stunning affirmation of home rule" with implications beyond hydrofracking, is nowhere near the last word.

We should know better than to expect a definitive outcome by now. This will go on, and on, and on, as we snake our way forward.

For one thing, we more than likely still have the state's highest court to hear from on home rule and hydrofracking. Even though all the clues suggest the Court of Appeals will render the same decision as the appellate court, it's never a safe bet to assume how the high court will rule. Certainly the gas industry is hoping for a reversal.

But in all likelihood, this momentous and carefully reasoned appellate ruling will prove to be the long hoped for logjam breaker. Up to now, the choices have been black and white, yes or no to hydrofracking in this state. That decision has rested uneasily on the shoulders of one man, the governor, who has done all he can to avoid making a final decision. He's read the polls, he knows.

Governor Cuomo has called fracking the most divisive issue facing the state, and he's right. The public is split down the middle, and those opposed are especially passionate. For a governor whose policy-making depends heavily on polls and the perception of having the public behind him, this is the stuff of paralysis.

But dodging a decision is getting old, and looks less and less attractive for the governor. The business community, the pro-development crowd, right-wing media and even the gas extraction people are increasing the din to go forward on fracking. Their growing impatience includes a rising level of disdain for the governor's tactics. Meanwhile, the state health commissioner is doing a remarkable job of remaining elusive with health reports on the perils of hydrofracking, the absence of which gives the governor threadbare rationale for waiting.

Suddenly this court ruling suggests strongly that the answer to whether we allow hydrofracking is not yes or no, it's yes and no. What was a lose-lose situation for the governor, because it was all or nothing for the split public, has now become a win-win, since localities will have the option to choose. Best of all from Cuomo's perspective, the governor is no longer the heavy.

Cuomo can rightly turn around and tell the gas industry that the future of fracking rests not with him, but with its ability to swing localities to the industry's point of view.

This court ruling, should it hold, is going to make for significant changes in negotiations over the fracking venues of the future. Town boards will have enormous power to decide the future and extent of the industry in the state.

This is a long way from what the gas extraction industry had hoped for, maybe even less than half a loaf. But by no means does this chase hydrofracking out of the state, as some proponents have alleged. The industry will simply have to work harder at the local level, and won't be able to operate with a sweeping hand. It will have to target carefully.

Cuomo anticipated that the court would rule as it has, which I'll bet is one reason he has been skillfully delaying a decision. As evidence there is this: even though the industry's argument centered on the state's regulatory power having priority over siting as well as regulation, the Department of Environmental Conservation chose not to defend its own statute. The state agency did not side in court papers or by representation with industry, which would have been a natural partner in this instance.

To the contrary. On more than one occasion, DEC Commissioner Joe Martens said he favored home rule in choosing where fracking could happen. You can be pretty well assured that the commissioner speaks for the governor, at least in this administration.

So where does that leave us on the big question statewide? Still waiting for those health reports, although I'm not sure they matter as much now that local choice is in play, thanks to the courts. Much to the governor's relief.